Odger's English Common Law

56 THE SOURCES OF THE LAW OF ENGLAND.
commerce came to be recognised even in the Law Courts. Till
that period our trade was mainly in the hands of foreign
merchants. "When any dispute occurred among these mer-
chants, it was not brought before the Courts of common law ;
the King's justices indeed were expressly forbidden to take
cognisance of it. 1 Such disputes were dealt with in local Courts
of Staple and Pie-poudre by laymen elected by the merchants
themselves to decide such matters. In these Courts was
administered a kind of " peregrine" law composed of mercantile
usages and customs. This body of customary law—largely of
alien origin—was gradually adopted as part of the common law
of England in the reigns of Queen Elizabeth and James I,
Hobart, C. J., in the year 1621 expressly declared "the custome
of merchants is part of the common law of this kingdome, of
which the judges ought to take notice : and if any doubt arise to
them about there custome, they may send for the merchants to
know there custome, as they may send for the civillians to know
there law." 2 And the custom of merchants is not fixed and
stereotyped ; it is capable of being expanded and enlarged so
as to meet the wants and requirements of trade in the varying
circumstances of commerce. 3
It was thus expanded and
enlarged, and its principles clearly stated, by Lord Mansfield
throughout the long period during which he sat as> Chief
Justice of the King's Bench.
The law merchant with reference to bills of exchange and other
negotiable securities " is of comparatively recent origin. It is neither
more nor less than the usages of merchants and traders in the different
departments of trade, ratified by the decisions of Courts of law, which,
upon such usages being proved before them, have adopted them as settled
law with a view to the interests of trade and the public convenience, the
Court proceeding herein on the well-known principle of law that, with
reference to transactions in the different departments of trade, Courts of
law, in giving effect to the contracts and dealings of the parties, will assume
that the latter have dealt with one another on the footing of any custom or
usage prevailing generally in the particular department. By this process,
what before was usage only, unsanctioned by legal decision, has become
engrafted upon, or incorporated into, the common law and may thus be
1 See the Statute of the Staple, 27 Edw. III., st. 2, c. 6.
2 Vanheath v. Tivrner (1621), Winch, at p. 24.
• Bechuanaland Exploration Go. v. London Trading Bank, [1898] 2 Q. B. 658 ;
Edehtein v. Schvler $ Co., [1902] 2 K. B. 144.